Another blow for comparative advertisers in court

Topic: comparative advertisingWho: The Court of AppealWhere: CardiffWhen: May 2001

What happened:

The Court of Appeal threw out an allegation of malicious falsehood in a case involving letters written to a local planning authority in a dispute over rights of way across a hotel car park.

Why this matters:

"Malicious falsehood" is a claim often made in comparative advertising cases. There may also be a trade mark infringement complaint, but where advertising is claimed to be false, malicious falsehood or "trade libel" as it is often called, is also alleged.

In a different context, barristers are required by Bar Council edict to only plead fraud in a civil case where clearly instructed by the client to do so and where there is "reasonably credible admissible evidence establishing a prima facie case."

In the recent case of Cornwall Gardens Pte Ltd. v R.O. Garrard and Co. Ltd., there was no plea of fraud, but the appeal judges stated clearly that they regarded claims of malicious falsehood as in the same category as fraud when it came to the drafting of the pleadings that set out the claimant’s case.

This means that in a case of comparative advertising, for example, Counsel should not simply throw in a trade libel claim for good measure. The claim should not form part of the case at all unless the barrister is clearly instructed to include it, and even then it must not appear unless Counsel has before him reasonably credible admissible evidence establishing a prima facie malicious falsehood case.

Even before this development, malicious falsehood has in recent years seldom been successfully claimed in a comparative advertising context. This judgement only serves to emphasise still more just how difficult it is to make a malicious falsehood claim stick.